Fill gaps in capital case trial lawyers

Express-News Editorial Board

Published
5:20 pm CDT, Tuesday, March 21, 2017

Photo: MICHAEL AINSWORTH /AP

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The number of death row exonerations in Texas points to the need to get the trials right by expanding the number of lawyers qualified to be appointed by the courts to defend indigent defendants in particular in capital cases. Ernest Willis, right, a Texas death row inmate for the last 17 years, hugs his wife of four years, Verilyn Willis, outside the prison Huntsville, Texas, after he was released Wednesday, Oct. 6, 2004. He was imprisoned for a crime that may not even have occurred — a fire first thought to be arson that killed two women. less

The number of death row exonerations in Texas points to the need to get the trials right by expanding the number of lawyers qualified to be appointed by the courts to defend indigent defendants in particular in ... more

Photo: MICHAEL AINSWORTH /AP

Fill gaps in capital case trial lawyers

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The shrinking list of lawyers qualified to handle the growing list of capital murder defendants in Bexar County does not bode well for the criminal justice system.

With 68 capital murder cases pending and only 11 lawyers living in the county who meet the minimum requirement to represent indigent defendants who might end up on death row, the likelihood is high that many of those cases will not be resolved soon.

Most defendants charged with capital murder are at the mercy of the criminal justice system for their legal defense. They generally lack the financial means to hire legal counsel or post bond.

That means those accused of capital murder in Bexar County will spend a long time in the local lockup awaiting their day in court. It also means a long wait for resolution by the families of the victims in those cases.

Usually, two lawyers are assigned to each capital murder case. Texas law requires those assigned as lead lawyers in capital murder cases to have spent five years doing criminal law work; have experience challenging mental health or forensics experts in court; and be skilled at presenting mitigating evidence to a jury.

The rules are well intentioned given the growing number of death row inmates across the country who have been exonerated. In Texas alone, 12 people have been released from death row since 1973.

The problems with the strict appointment guidelines is that they do not allow the assignment of former prosecutors who may have tried capital murder cases or former judges who may have presided over such cases.

Lawyers on the list of candidates qualified to handle capital murder cases in Bexar County are vetted by a local selection committee, but the group of veteran lawyers and jurists serving on it are strictly bound by the state regulations.

Attempts by the Bexar County judiciary to broaden the rules to allow former prosecutors and judges to qualify for the appointments have met with stiff opposition at the state level.

The issue needs to be addressed.

Burdening a small group with the defense of the most serious of felonies is a disservice to the lawyers and their clients.

The cases can be emotionally and physically grueling on the defense team. The sheer number of cases each lawyer is handling makes a strong case for an appeal based on ineffective assistance of counsel.

The shortage of lawyers to handle capital murder defense work is not unique to Bexar County. Express-News Staff Writer Bruce Selcraig reports that other jurisdictions are experiencing the same situation.

Establishing a public defenders office that would include lawyers who are experienced in capital murder defense is an expensive proposition. The same can be said for hiring defense lawyers from out of town to tackle the caseload.

The fee paid to court-appointed lawyers in capital murder cases is only $150 an hour for actual trial work, but the costs add up quickly for taxpayers footing the bill. If lawyers are brought in from out of town, there is the added cost for travel, lodging and meals.

The number of death sentences in Texas has been steadily declining since life without parole became a sentencing option. It has gone from 48 people sent to death row in 1999 to only four in 2016.

Lack of eligible lawyers to handle capital murders defense work could bring those numbers down further.

If that was the intent behind the strict rules on the criminal defense appointments, then let’s be upfront about it and start a serious discussion on the future of the death penalty in Texas.

If not, the stressful workload piled on the few attorneys qualified to represent capital murder defendants needs to addressed.

It is simply unacceptable that defendants without financial means have limited access to defense lawyers in capital cases. The list of available attorneys needs to be broadened.